Board of Zoning Appeals - Regular Meeting

Heat. Heat. N. [Music] Heat. Heat. Heat. N. [Music] Hey, [Music] hey, hey. [Music] Welcome to the town of Avon board of zoning appeals meeting. If you're interested in having a copy of the agenda or the staff reports are

available on the tables to the right of the audience. This meeting is being recorded for the public record. Because of this, request that personal conversations are kept to a minimum and all cell phones are set to vibrate with any phone calls taken outside the chambers. If you are interested in commenting during any public hearing, please sign up on the sheets located on the tables to the right of the audience. When your name is called, please step forward to the podium and state your name and address for the record. Please address your comments to the board and not to the staff or the appellant. Your comment should relate directly to the case at hand. We do understand that there may be several persons who wish to speak. The chair may therefore impose a time limit for each person. Federal law requires that the town make available to all attendees a title six public involvement survey. These surveys are to the table to the right of the audience. Members of the public who wish to complete this survey may do so and place them in the designated area. If because of a disability any person in attendance needs assistance or accommodation to fully participate in this meeting, please notify staff. Thank you for your assistance in facilitating a respectful, fair, and timely meeting. Again, welcome to our meeting. Please stand for the pledge of allegiance to the flag of the United States of America to the republic for it stands nationy and justice for all. Do we have roll call please? Marcus Turner here. Marcy Tachler here. Katherine Ransburg here. Annman here. And we will show Paul Glutenberger absent. First time is the approval of the minutes from May or April 15th. Sorry, I jumped a month ahead. Um does anyone have any

questions, comments, concerns? No, I'll move to approve the minutes of uh April 15th as drafted. We have a motion by Mrs. Inman and a second by Mrs. Ransburg. Is there any discussion? All in favor say I. I. Anyone opposed? Meeting minutes are passed. Next item is request for continuances andor agenda modifications. Thank you, Chairperson Turner, members of the board. Um, we have petitions SE 2405 and VR 2407, both pertaining to property as 7893 East US Highway 36. Um, these petitions have been on the docket since December and have been continued previously four times as staff has been working with the petitioner to try to resolve the issue with the larger Lowe's property. that um has never installed an access drive. That was a requirement of their development plan approval. Uh approximately 20 years ago and staff would like to see that matter resolved before any further development approvals move forward. We did have a discussion with the petitioner um on June 2nd and um I think I could best describe it as that well the petitioner is working with the property owner who is Lowe's. Um the petitioner is trying to obviously develop this portion of the property, but um it's a little bit slowgoing getting things to Lowe's and getting comments back and getting a clear understanding um from their standpoint of of what we're

asking for and understanding that um it's a outstanding requirement, not something that we're asking just specific to this request. Um, having said all that, we did indicate to the petitioner that we would um support at least uh one last continuence of this to hopefully give them time to put together a proposal that would um satisfy our desire to get this requirement for an access drive between the Lowe's property and Vista Parkway. um to get that settled before any further development would be approved on the property. And we indicated to the petitioner that we would um support a continuence either to your August or September hearings. Um, the petitioner did not state a preference, but given the limited progress that we've seen to this point, we would suggest that if you only want to hopefully continue this one more time with the hopes that they'll actually be ready to move forward the next time you see this on your docket, that it would probably be more advisable to continue this to your September 16th hearing. Um and that would be um we would say that would need to be with additional notice required. So is the problem getting Lowe's to just step up and and work with the petitioner to get this thing resolved? Are are they just dragging their feet because they don't care or Well, I think I can fairly state that Lowe's initial position was that they indicated that they didn't know that this

outstanding requirement um was hanging out there. And then they're after being shown that they that this was a legitimate um request that the town is trying to resolve, their position was that they they didn't want to agree to make that connection between their property and Vista Parkway. Um even though it was required when they built their when they got approval for that development, right? I I can't say as to whether they that their position would be that they agree with the town that it was a requirement. Um we think it's pretty clear that the records show that it was a required part of their development plan approval. Um but they they have expressed some push back and that they're concerned about traffic using that and cutting through their property. Has has Lowe's legal been brought in on this? I don't know who at has I don't know what their positions are. Mo mostly we've been um talking with the the petitioner whose pavilion development company who would be the one developing the Dutch Brothers coffee uh establishment that's proposed. They're working with Lowe's. Um, we did have someone from Lowe's team on uh at least one of our calls. I don't know what their position was or what their position with Lowe's was. You know, um, the petitioner here is they're trying to do something and they've got the property owner holding up the train. Would it not be fruitful for staff to pursue an enforcement action against Lowe's? That's where I was thinking, too.

Yeah, that would be something that staff would probably be more likely to do if this petition were to no longer be on the docket. But with this request pending, um it was our opinion that it would be potentially a better solution for both the town and the property owner if we could come to some agreement through this process and not have to, you know, go through a legal enforcement process that so so this might be more costly for both parties. So the property is owned by Lowe's, correct? and they're the ones who I'm assuming approve the development of this this this particular proposal. I mean, it's on their property. So, I'm assuming that they are they gave it a thumbs up. They've they've given consent for this filing, but they don't want to follow through not only on making it for possible for this to happen, but to also comply with the previous obligations that they had. And I don't want to speak too much for someone who's not here, but I mean I can, as I mentioned, that's what it sounds like. They're Yeah. Their their push back was that they were concerned about traffic using the the connection from Vista Parkway as a cut through and and that should have been addressed however many years ago. Yeah. and and and has the town made it clear that they would rather see this be resolved as part of a package deal as opposed to an enforcement action? Absolutely. Okay. And Lowe's doesn't care. Lo has not been responsive to that. I don't think I can answer that question for you. Mr. Taylor, do I'm assuming you're not involved yet. This is a lot. No. Um but yeah the the um we faced this before a couple times

in exactly the same situations where you have a really large box they plan to develop the outlots at some future date and then this connectivity issue comes up because of the internal flow. So, in the DPR approval, which looks like it was in 2000, um it seems to me that what we could do, um and this really goes to a plane commission issue, the DPR, is we could send them a letter saying, "Look, we you know, we we have an application for development here, and that means that you have to allow that connection. Let us know if you are going to allow u allow the connection or whether you are going to amend try to amend your DPR approval and just lay those options out for them. Put it on Lowe's to do one or the other and then as it relates to this particular um I mean we it should not be our position to do the work for the the petitioner here but it's a whole different issue and it's a whole different body who would enforce it. It really would not involve the BGA. It would involve the plane commission to authorize any sort of enforcement. But I think giving low their option which is to comply or amend their try to amend their DPR and then make their case to the plane commission about the amendment of their development plan. Um but these things are complicated because somewhere in this process Dutch Brothers and Lowe's have made some agreement. We're not party to that. We don't know what it says. So, I think the best way to do to do that would be maybe to suggest to Lowe's that they they are we expect them to comply unless it gets modified and then see what happens. Does that require a demand letter from your office

or a demand letter from the town manager or the planning staff can just communicate that and they usually wouldn't bring us in until the plane commission authorized a formal enforcement. Oh, okay. You're right. Litigation. Yeah. Initiate pre-litigation communications of some kind. Yeah. But I mean, our staff has communications like this all the time. And they can they they can do that and and they can do that. Don't pay attention until there's something on legal letterhead sometimes. Oh, they're serious sometimes. And it's obvious that Dutch Brothers is hanging on here and being very patient. Is it clear to them that these things have to happen for us to consider? Clear to Dutch Brothers, you mean? Yeah. Linda, you do they understand the seriousness of I've tried my best to make that clear both through what's written in the staff report as well as the conversations that we've had. I know Linda had a conversation um with one of the representatives of Pavilion Development who would develop the Dutch Brothers establishment um last week while I was out of the office. Um, and that kind of goes to the point I was making that even though we've made this clear and it should be clear from their receiving and reading of our staff report, um, that they there seem to be some lack of clarity on their end that this was a requirement that of their development plan approval from 2000. Um, and maybe they were confused because the the town hasn't taken enforcement action over the last 25 years, but so somebody at Lowe's

didn't do their due diligence and make sure there wasn't any anything outstanding that would interfere with this contract between the petitioner and Lowe's. This Yeah, I was just going to say um I mean this issue we went through a similar process the town did back in 2006. I don't know if any of us I mean I certainly wasn't involved. Um but back in 2006 Lowe's tried to create an outlot there similar to what they're trying to do now to develop a steak and shake there. Um and went through the same process with the town of the town saying we want you to take care of this outstanding obligation to create this access point to Vista Parkway. Um, Lowe's didn't want to do that. They they proposed um an alternative of trying to make a get an easement through I believe it was Church Brothers Collision at the time. Is it Church Brothers now still? Um, it's something else now, but Okay. Caliber. Yes. Cal. It went from Church Brothers to Caliber. So they actually got an appro um so they they they actually did try to amend their development plan approval at that time in 2006 and the commission granted an approval but it was subject to them um actually gaining the the access easement and providing that within 30 days which never occurred. Um so then their their amendment to their development plan approval was void at that point. So, six years after their original development plan approval, they were aware of this and they have and yet and going forward, they've just

never followed through on it. And there was some and and never had a and then the and the town just never followed through with an enforcement action and there I found some letters in our files subsequent to that action where the town was still making requests for them to follow through with um doing the approval. There was some back and forth and it just dropped off at some point. I'm not sure why it didn't get continued further, but it seems like a a lot of time and energy between 2006 and now has gone into Lowe's and and the outlot and I think we have to take a stand or um we'll be spending more energy on it. I don't object to one more continuence, but I do think and I don't know if Mr. Taylor could provide the legally um, you know, the the the language that uses, you know, the legal mom voice and says you have to do this that that count that staff can use. I mean, I don't I don't know if that's appropriate or not, but but it just seems like either they just don't care or well, we haven't had to deal with it in 25 years, so we're not going to deal with it now. I mean, they've had what, two proposals for outlaws in 25 years. Well, and I can comment that I know last week in Linda's communications with the petitioner, she did make it clear in an email that the town does expect this matter to be resolved whether or not the Dutch Brothers it gets approval to go in or not. So, it should be clear now. I feel like it should have been clear earlier, but um I would say it certainly should be clear to them now that it's an issue that

needs to be resolved one way or the other regardless of whether they get approval to do an outlaw here. I would agree with that. I I would just request that you know the BCA the only action the BCA can take is whether to continue this matter. the enforcement of a DPR is plank commission and so and some of you may be on both but that doesn't mean we can do it here right okay so I just think that um I think staff knows what to do but as it relates to the pending petitions I think what staff is telling the petitioners here is you're not you're not likely to get this approved till you figure this road issue out that communicated to Lowe's it needs to be done too. So those things those two issues will have to kind of go on and but in the enforcement side is plane commission plane commission would have to take action on that and and again I would just think we have to remember try to just remember which meeting we're at and deal with one thing at a time. Sounds like a good topic for the uh next plan commission meeting. How many? Well, yeah. H there are they continue to get more than have we exceeded that yet. They're allowed one and then any future ones are in your discretion. Staff is requesting this one. So they have they so they have a little more time to get this issue worked out. I don't mind. I don't I don't mind the the continuences. This is not the petitioner's problem per se. I just man we we got a third party out there. He's holding stuff up and that's not a good good precedent to set. No, I agree. I I don't object to an one more continuence and you know I know staff

later September September. Yeah. And you know, I know staff is going to be as forceful as they can be both with the petitioner and with Lowe's to say these this is what needs to happen and this is what the consequences will be if it doesn't happen for both parties. Um, I don't mean, you know, it's that the petition won't be approved and if Lowe's wants to develop this, they're gonna have to do what they need to do and Dutch Brothers will find someplace else to build in Avon, I hope. So, that's what they want. Yeah. Don't you I don't know. They're not here. I think they want it to just dry up and blow away. I used to work in the hardware industry. Well, well, when the petition comes to you, you have two petitions before you, one for a special exception and one for a variance. And when the petitions come before you after after a continuence, you of course will be obligated to hear the facts presented that night and then decide what you want to do on these. Staff can communicate what they think you will do, but I would not want you to say tonight what you might do later. Fair enough. I move that we approve the request for continuance. And should we should we do 3.1 and 3.2 together because they're the same. It's going to be same action. Correct. Yes. Um, I would move that we approve the request for continuance for SE24-5, Dutch Brother Coffees, Dutch Brothers Coffee, and V24-07, also Dutch Brothers Coffee, to the September 19th meeting, 16th meeting. Motion by Mrs. Ransbury. Is there a

second? I'll second. Second by Mrs. Inman. Any discussion? Yes. I think that staff's recommendation was also in addition to the required the petitioner to provide notice of that hearing once again because you can motion. Yes. Yes. Okay, we're ready for a vote. Inman four, Ransburg four. Tashler four Turner four we are continued. Uh next time is public comment. Would anyone like to speak? I don't see anybody I don't see anybody wanting to speak. So uh any other business? So I I have an announcement that we don't have any cases for the July 15th meeting. And since you didn't continue this to that meeting, then we will not have any business for July. We potentially could for August. So, we'll be in touch. I will not be here in August, but Okay, just FYI. I may not be here in August either. I'll check that out before I leave. It's August 19th. Okay. Is that it? That's it. Okay. We are ajourned. Thank you. [Music]